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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Legal Profession and Public Notaries Amendment
Bill 2012
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--AMENDMENTS TO THE LEGAL PROFESSION
ACT 2004 4
3 Definitions 4
4 Local practising certificates 4
5 New section 3.5.4A inserted 5
3.5.4A Corporate legal practitioners required to insure to
engage in legal practice on a pro bono basis 5
6 Terms and conditions of insurance 5
7 Exemption from insurance requirements 6
8 Summary dismissal of complaints 6
9 Investigation to be conducted expeditiously 6
10 New sections 4.4.12A, 4.4.12B and 4.4.12C inserted 7
4.4.12A Commissioner may suspend investigation if
practitioner may be removed from local roll 7
4.4.12B Commissioner may decide to take no further action
if practitioner removed from local roll 7
4.4.12C Notice of decision to suspend, resume or take no
further action 8
11 Delegation 8
12 Annual report 9
13 Funding of law-related services and activities 9
14 New Part 15 inserted in Schedule 2 9
PART 15--LEGAL PROFESSION AND PUBLIC
NOTARIES AMENDMENT ACT 2012 9
15.1 Disciplinary complaints 9
15.2 Investigations under Division 3 of Part 4.4 9
15 Statute law revision 10
571205B.I-29/2/2012 i BILL LA INTRODUCTION 29/2/2012
Clause Page
PART 3--AMENDMENTS TO THE PUBLIC NOTARIES
ACT 2001 12
16 Eligibility for appointment 12
17 Application for certificate of eligibility 12
18 New section 12 inserted into Part 4 13
12 Transitional--Legal Profession and Public Notaries
Amendment Act 2012 13
PART 4--REPEAL OF AMENDING ACT 14
19 Repeal of amending Act 14
ENDNOTES 15
571205B.I-29/2/2012 ii BILL LA INTRODUCTION 29/2/2012
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Legal Profession and Public Notaries
Amendment Bill 2012
A Bill for an Act to amend the Legal Profession Act 2004 in relation
to pro bono legal services, disciplinary complaints and investigations,
professional indemnity insurance, the reporting requirements and
payment powers of the Legal Services Board and to amend the Public
Notaries Act 2001 in relation to eligibility for appointment as a public
notary and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are--
(a) to amend the Legal Profession Act 2004--
5 (i) to permit corporate legal practitioners
to engage in legal practice on a
pro bono basis; and
571205B.I-29/2/2012 1 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 1--Preliminary
s. 2
(ii) to change the annual reporting
requirements of the Legal Services
Board; and
(iii) to provide an additional basis on which
5 the Legal Services Commissioner may
dismiss a disciplinary complaint; and
(iv) to empower the Legal Services
Commissioner to suspend, or decide to
take no further action in relation to, an
10 investigation under Division 3 of
Part 4.4 in certain circumstances; and
(v) to change the factors that the Legal
Practitioners' Liability Committee must
take into account in determining
15 premiums and excesses in relation to
contracts of professional indemnity
insurance; and
(vi) to empower the Legal Services Board
to make payments out of the Public
20 Purpose Fund for the purpose of
judicial education; and
(vii) to permit the Legal Services Board to
delegate certain functions in relation to
setting professional indemnity
25 insurance requirements; and
(b) to amend the Public Notaries Act 2001 to
provide that a person must not be appointed
as a public notary unless that person is a fit
and proper person to be a public notary.
30 2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
571205B.I-29/2/2012 2 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 1--Preliminary
s. 2
(2) If a provision of this Act does not come into
operation before 1 February 2013, it comes into
operation on that day.
__________________
571205B.I-29/2/2012 3 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 3
PART 2--AMENDMENTS TO THE LEGAL PROFESSION
ACT 2004
3 Definitions
See: In section 1.2.1(1) of the Legal Profession Act
Act No.
5 99/2004. 2004, for the definition of corporate legal
Reprint No. 4 practitioner substitute--
as at
1 July 2011
and
"corporate legal practitioner means an Australian
amending legal practitioner who engages in legal
Act No.
36/2011.
practice as an employee of a person who, or
10 LawToday: body that, is not--
www.
legislation. (a) an Australian legal practitioner; or
vic.gov.au
(b) an Australian-registered foreign lawyer;
or
(c) a law practice;".
15 4 Local practising certificates
After section 2.4.3(5) of the Legal Profession Act
2004 insert--
"(5A) Subject to subsection (5B), a local legal
practitioner whose practising certificate is
20 subject to the condition referred to in
subsection (3)(b)(iv) must provide legal
services only to, and for the purposes of, his
or her employer.
(5B) A local legal practitioner whose practising
25 certificate is subject to the condition referred
to in subsection (3)(b)(iv) may also engage
in legal practice--
(a) as a volunteer at a community legal
centre as described in subsection (6);
30 and
(b) otherwise on a pro bono basis.".
571205B.I-29/2/2012 4 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 5
5 New section 3.5.4A inserted
After section 3.5.4 of the Legal Profession Act
2004 insert--
"3.5.4A Corporate legal practitioners required to
5 insure to engage in legal practice on a pro
bono basis
(1) At all times while a corporate legal
practitioner is engaged in legal practice on a
pro bono basis in this jurisdiction (other than
10 as a volunteer at a community legal centre),
the practitioner must be covered by
professional indemnity insurance on terms
and conditions approved by the Board.
(2) The insurance must cover civil liability of
15 the corporate legal practitioner in connection
with--
(a) the legal practice being engaged in on a
pro bono basis; and
(b) any related administration of trusts.".
20 6 Terms and conditions of insurance
(1) After section 3.5.6(2)(b) of the Legal Profession
Act 2004 insert--
"(ba) the revenues of law practices;".
(2) For section 3.5.6(2)(e) of the Legal Profession
25 Act 2004 substitute--
"(e) the cost and difficulty of differentiating
between the different types of legal practices
of, and the different types of matters handled
by, law practices;".
571205B.I-29/2/2012 5 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 7
7 Exemption from insurance requirements
After section 3.5.7(3) of the Legal Profession Act
2004 insert--
"(4) The Board may exempt a corporate legal
5 practitioner or class of corporate legal
practitioners from the requirement to be
covered by professional indemnity insurance
in relation to legal practice engaged in on a
pro bono basis.".
10 8 Summary dismissal of complaints
For section 4.2.10(1)(f) of the Legal Profession
Act 2004 substitute--
"(f) in the case of a disciplinary complaint, the
Commissioner, having considered the
15 complaint, forms the view that--
(i) it is not in the public interest to
investigate the complaint because the
subject of the complaint is an
Australian legal practitioner whose
20 name has been removed from the local
roll; or
(ii) the complaint requires no further
investigation.".
9 Investigation to be conducted expeditiously
25 In section 4.4.12(1) of the Legal Profession Act
2004, for "An investigation" substitute "Subject
to section 4.4.12A, an investigation".
571205B.I-29/2/2012 6 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 10
10 New sections 4.4.12A, 4.4.12B and 4.4.12C inserted
After section 4.4.12 of the Legal Profession Act
2004 insert--
"4.4.12A Commissioner may suspend investigation
5 if practitioner may be removed from local
roll
(1) The Commissioner may suspend an
investigation under this Division if the
Commissioner forms the view that it is in the
10 public interest to do so because an
application has been made--
(a) to the Supreme Court for an order that
the practitioner's name be removed
from the local roll; or
15 (b) to the Tribunal for an order
recommending to the Supreme Court
that the name of the practitioner be
removed from the local roll.
(2) The Commissioner--
20 (a) may resume the investigation at any
time; and
(b) must resume the investigation if the
application referred to in subsection (1)
is withdrawn or refused.
25 4.4.12B Commissioner may decide to take no
further action if practitioner removed
from local roll
The Commissioner may decide to take no
further action in relation to an investigation
30 under this Division if the Commissioner
forms the view that it is in the public interest
to do so because the practitioner's name has
been removed from the local roll.
571205B.I-29/2/2012 7 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 11
4.4.12C Notice of decision to suspend, resume or
take no further action
(1) The Commissioner must give the practitioner
written notice if the Commissioner--
5 (a) suspends an investigation under
section 4.4.12A(1); or
(b) resumes an investigation under
section 4.4.12A(2); or
(c) decides to take no further action in
10 relation to an investigation under
section 4.4.12B.
(2) If the investigation arose from a complaint,
the Commissioner must also give written
notice to the complainant.
15 (3) The Commissioner must give notice under
this section as soon as practicable.
(4) The Commissioner must include, in any
notice given under this section, the reasons
for suspending the investigation, resuming
20 the investigation, or deciding to take no
further action in relation to the investigation
(as the case requires).".
11 Delegation
For section 6.2.19(2)(g) of the Legal Profession
25 Act 2004 substitute--
"(g) setting professional indemnity insurance
requirements under Part 3.5, other than--
(i) approving terms and conditions under
section 3.5.3, 3.5.4(1) or (2)
30 or 3.5.4A(1);
(ii) exempting individual law practices
from the requirement to obtain
professional indemnity insurance from,
or maintain professional indemnity
571205B.I-29/2/2012 8 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 12
insurance with, the Liability Committee
under section 3.5.7;".
12 Annual report
Section 6.2.21(c) of the Legal Profession Act
5 2004 is repealed.
13 Funding of law-related services and activities
After section 6.7.10(1)(b) of the Legal Profession
Act 2004 insert--
"(ba) judicial education;".
10 14 New Part 15 inserted in Schedule 2
After Part 14 of Schedule 2 to the Legal
Profession Act 2004 insert--
"__________________
PART 15--LEGAL PROFESSION AND PUBLIC
15 NOTARIES AMENDMENT ACT 2012
15.1 Disciplinary complaints
Section 4.2.10(1)(f), as substituted by
section 8 of the Legal Profession and
Public Notaries Amendment Act 2012,
20 applies to a disciplinary complaint made
before, on or after the day on which section 8
of that Act comes into operation.
15.2 Investigations under Division 3 of Part 4.4
(1) Section 4.4.12(1), as amended by section 9
25 of the Legal Profession and Public
Notaries Amendment Act 2012, applies to
an investigation under Division 3 of Part 4.4
commenced before, on or after the day on
which section 9 of that Act comes into
30 operation.
571205B.I-29/2/2012 9 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 15
(2) Sections 4.4.12A, 4.4.12B and 4.4.12C, as
inserted by section 10 of the Legal
Profession and Public Notaries
Amendment Act 2012, apply to an
5 investigation under Division 3 of Part 4.4
commenced before, on or after the day on
which section 10 of that Act comes into
operation.".
15 Statute law revision
10 (1) In section 3.4.44B of the Legal Profession Act
2004 omit "Victorian".
(2) In section 5.3.1(3), 5.4.1(3), 5.5.1(5) of the Legal
Profession Act 2004, for "employee of the Board"
substitute "employee referred to in section 6.4.1".
15 (3) In the note at the foot of section 5.3.1(4)(e) of the
Legal Profession Act 2004, for "employee of the
Board" substitute "employee referred to in
section 6.4.1".
(4) In the note at the foot of section 5.4.1(4)(e) of the
20 Legal Profession Act 2004, for "employee of the
Board" substitute "employee referred to in
section 6.4.1".
(5) In the note at the foot of section 5.5.1(6)(d) of the
Legal Profession Act 2004, for "employee of the
25 Board" substitute "employee referred to in
section 6.4.1".
(6) Section 6.2.19(2)(h) of the Legal Profession Act
2004 is repealed.
(7) In section 6.6.11(4)(c) of the Legal Profession
30 Act 2004, for "incorporated practitioner"
substitute "incorporated legal practice".
(8) In section 6.7.24(2)(d) of the Legal Profession
Act 2004, for "3.6.9 (defaults relating to financial
services or investments)" substitute "3.6.6".
571205B.I-29/2/2012 10 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 2--Amendments to the Legal Profession Act 2004
s. 15
(9) In section 7.2.6(a) of the Legal Profession Act
2004, for "employee of the Board" substitute
"employee referred to in section 6.4.1".
(10) Part 9 of Schedule 2 to the Legal Profession Act
5 2004 is repealed.
__________________
571205B.I-29/2/2012 11 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 3--Amendments to the Public Notaries Act 2001
s. 16
PART 3--AMENDMENTS TO THE PUBLIC NOTARIES
ACT 2001
16 Eligibility for appointment
See: At the end of section 4 of the Public Notaries Act
Act No.
5 52/2001. 2001 insert--
Reprint No. 1
as at "(2) A person cannot be appointed as a public
15 May 2008.
LawToday:
notary unless the Board of Examiners is
www. satisfied that the person is a fit and proper
legislation.
vic.gov.au
person to be a public notary.".
10 17 Application for certificate of eligibility
(1) In section 5(4) of the Public Notaries Act 2001,
for "paragraphs (b), (c) and (d) of section 4"
substitute "section 4(1)(b), (c) and (d) and (2)".
(2) After section 5(4) of the Public Notaries Act
15 2001 insert--
"(4A) In determining whether an applicant is a fit
and proper person to be a public notary, the
Board of Examiners must have regard to--
(a) whether the applicant has ever been
20 suspended from practice; and
(b) whether the applicant has been found
guilty of either of the following within
the meaning of the Legal Profession
Act 2004--
25 (i) professional misconduct; or
(ii) unsatisfactory professional
conduct; and
(c) whether the applicant has been found
guilty of either of the following under a
30 corresponding law within the meaning
of the Legal Profession Act 2004--
571205B.I-29/2/2012 12 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 3--Amendments to the Public Notaries Act 2001
s. 18
(i) professional misconduct; or
(ii) unsatisfactory professional
conduct; and
(d) whether the applicant is being
5 investigated for a disciplinary
complaint--
(i) within the meaning of the Legal
Profession Act 2004; or
(ii) under a corresponding law within
10 the meaning of that Act.".
18 New section 12 inserted into Part 4
After the heading to Part 4 of the Public Notaries
Act 2001 insert--
"12 Transitional--Legal Profession and
15 Public Notaries Amendment Act 2012
Part 2 as amended by sections 16 and 17 of
the Legal Profession and Public Notaries
Amendment Act 2012 applies in respect of
a person who applies for a certificate of
20 eligibility under section 5 after the
commencement of those sections.".
__________________
571205B.I-29/2/2012 13 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Part 4--Repeal of Amending Act
s. 19
PART 4--REPEAL OF AMENDING ACT
19 Repeal of amending Act
This Act is repealed on 1 February 2014.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
571205B.I-29/2/2012 14 BILL LA INTRODUCTION 29/2/2012
Legal Profession and Public Notaries Amendment Bill 2012
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
571205B.I-29/2/2012 15 BILL LA INTRODUCTION 29/2/2012
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